Anil Kumar, J.
1. This order will dispose of the application of the plaintiff IA 3848 of 2006 under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure seeking restrain against the defendants terminating agreement between the plaintiff and the defendant No. 1.
2. Brief facts to comprehend the disputes between the parties are that the plaintiff contended he is one of the market leaders in handling international air and sea cargo/courier and approached the defendant No. 1 with the business proposals. The plaintiff asserted that the deliberations between the plaintiff and the defendant finally led to plaintiff being appointed as an authorized agents by defendant No. 1 for the purposes of handling cargo/courier business. Plaintiff was intimated by an e-mail dated 24th October, 2005 about his appointment as an authorized agent of the defendant No. 1. The appointment of the plaintiff as an authorized agent was subject to the plaintiff company furnishing a bank guarantee for a sum of Rs.15,00,000/- and plaintiff giving two undated cheques for a sum of Rs.5,00,000/- each. Subsequently, condition of two undated cheques of Rs.5,00,000/- was waived and plaintiff was asked to furnish a bank guarantee for a sum of Rs.15,00,000/. The plaintiff submitted a bank guarantee which is valid from 27th October, 2005 till 26th October, 2006. Since the plaintiff complied with the terms for appointment as authorized agent, he was appointed as agent by defendant No. 1 for the period commencing from 27th October, 2005 to 26th October, 2006 and renewable thereafter.
3. Plaintiff asserted that after appointment as an authorized agent of the defendant No. 1, he is booking huge quantity of cargo/courier. As most of the cargoes are booked on urgent/priority basis the same are booked only on as late as morning/afternoon of the night when the cargo has to go for its final destination. Plaintiff is contended to have performed exceptionally well. The plaintiff has made the highest bookings in terms of quantify and in terms of value with defendant No.
4. The grievance of the plaintiff is that on 30th March, 2006, a phone call was received from defendant No. 3 intimating the Managing Director of the plaintiff company that the contract/appointment as an authorized agent was being terminated with immediate effect from 1st April, 2006. The said phone call is alleged to have been received by the plaintiff around 11.30 a.m. around which time the plaintiff was busy procuring bookings from its customers for consignment to be booked on flight on the night of 30th March, 2006. The plaintiff assertion is that he made highest bookings in terms of quantify and in terms of value with defendant No. 1 and there was no and could not be any reason to terminate the relationship between the defendant No. 1 and the plaintiff. The Managing Director of the plaintiff company therefore, sought an explanation and reason for this abrupt and illegal decision but no positive reply was given nor any formal communication was received by the plaintiff.
5. The assertion of the plaintiff is that initially he was appointed as an authorized agent by defendant No. 1 for an initial period of one year commencing from 27th October, 2005 up to 26th October, 2006 which was further renewable. Consequently, the plaintiff company submitted a bank guarantee for a sum of Rs.15.00 lakh on the prescribed form on 27th October, 2005 payable by Punjab National Bank, Kasturba Gandhi Marg, New Delhi. The plea of the plaintiff is that after being appointed as an authorized agent, he contacted various business houses and cargo companies who had large consignments to courier/cargo to London.
6. On account of exigencies of circumstances and urgency involved, the consignments were booked only as late as morning/afternoon of the night on which they were placed on board of plane to their final destination. The plaintiff company had been intimating the defendant No. 1 between 12.00 noon and 2.00 PM about the expected load in kilograms which plaintiff intended to place on board. The plaintiff assimilated all this information of the quantity of load to be sent by him and used to intimate the defendant No. 1 as the said information was required by defendant No. 1 to block required space in the aircraft for the couriers/goods of the plaintiff company.
7. According to plaintiff, he had been sending a fortnightly chart intimating the quantity of consignment already booked by the plaintiff as per the requirement of defendant No. 1. The statements were generated on 15th day and the last day of the month and payments were permitted with 45 days credit. The plaintiff contended that he generated good business exceeding Rs.1.00 crore for the defendant No. 1 and also sent the fortnightly chart of each project in accordance with the terms of the agreement. Though the agreement was up to 26th October, 2006 and thereafter extendable for another year, on 30th March, 2006, it has been terminated illegally and without any rational and reason which can not be done by the defendants in the facts and circumstances. The alleged reason given afterwards that the plaintiff is not an IATA approved agent is also without any rational. This termination has been challenged by the plaintiff contending that the decision of defendant No. 1 to unilaterally terminate the agreement is in violation of principle of natural justice and cannot be implemented and agreement between the parties should not be allowed to be terminated. The termination was contended to be unfair and unjust. The termination by giving one day notice without assigning any reason was stated to be bad in law and contrary to Section 206 of the Contract Act. It was also asserted by the plaintiff that he was not an IATA agent when he was appointed as an authorized agent and therefore, he could not be terminated on the ground that he is not an IATA approved agent. The action of termination was also challenged on the ground that two other companies though not IATA approved agent continue to do business with the defendant No. 1 on Kathmandu and London sectors.
8. In the circumstances, the plaintiff filed the suit for permanent injunction seeking restrain against the defendants from terminating the agreement/bank guarantee dated 27th October, 2005 and terminating the contract of the plaintiff company as an authorized agent. The plaintiff also sought a decree of declaration that the agreement/bank guarantee dated 27th October, 2006 is valid and subsisting between the parties and the alleged decision to terminate the contract is illegal and arbitrary.
9. On an application for interim injunction, by order dated 31st March, 2006, the decision of the defendants to terminate the contract between the plaintiff and the defendants without disclosing any reason communicated orally was stayed.
10. The application of the plaintiff is contested by the defendants and a written statement and reply to application under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure were filed by defendant No. 1. The defendants asserted that a bank guarantee did not and could not amount to or resulted in any contract or any contractual obligations between the plaintiff and the defendants. According to defendants, the suit as framed is not maintainable. The principles of administrative law relied on by the plaintiff are wholly mis-conceived and inapplicable. Regarding the agreement between the plaintiff and the defendants, it was stated that the agreement is not enforceable in law nor the plaintiff is entitled to claim specific performance of the same. It was also pleaded by the defendants that in fact no terms and conditions of alleged agreement has been spelt out by the plaintiff and in the circumstances there is no agency agreement except that for every transaction done by the plaintiff he was entitled for a credit of 45 days for which a bank guarantee was given by the plaintiff. The bank guarantee was only a pre- requisite for doing any business with the defendant No. 1 company as plaintiff is not an IATA approved organization and the bank guarantee was furnished for enjoying credit facilities with defendant No. 1. The plaintiff has failed to cull out and demonstrate the terms and conditions of alleged agreement except that the plaintiff was allowed to do business on credit with the defendant No. 1. Extension of credit facilities for doing business with defendant No. 1 company upon furnishing the bank guarantee could not be construed in law of a continuing contract as has been sought to be contended by the plaintiff. The credit facilities given to the plaintiff cannot be construed as a contract for dong business nor such a bank guarantee be construed as an obligation on the part of the defendants to continue to do business or that such an arrangement can be perpetuated by a decree for specific performance.
11. The defendants were categorical that plaintiff is free to do business with other airlines and he is actually doing business with others and the defendants cannot be tied down to do business of unaccountable courier package (referred to as UCB) operations with the plaintiff. The defendants also challenged the claim of the plaintiff on the ground that the suit has been valued on the basis of unpaid bills though the suit is not for the recovery of money and consequently the suit has not even been properly valued and in any case there is no such contract which may be specifically enforced against the defendants and the defendants cannot be directed to continue doing business with the plaintiff in the circumstances.
12. Regarding terminating the business with the plaintiff, it was stated that as the plaintiff is not an IATA approved/authorized agent, the defendant, as a matter of business policy, decided not to deal with the plaintiff on the international sector with effect from 1st April, 2006 and consequently the decision not to do any further business was communicated to the plaintiff on phone on 30th March, 2006. According to the defendants, the plaintiff has still in his possession five airway bills and acceptance of unilateral bank guarantee does not amount to signing of an agreement to award the plaintiff any work that too for indefinite period of time. In the circumstances, the defendants have prayed that the interim injunction granted by order dated 31st March, 2006 be vacated and the Interim application IA 3848 of 2006 be dismissed.
13. I have heard the learned Counsels for the parties at length and have also perused the application for interim injunction under Order 39 Rules 1 and 2 and the reply filed by the defendants besides the pleadings of the parties and the documents.
14. The plaintiff contended that he was an authorized agent of the defendant No. 1. The test of agency is whether the person is purporting to enter into transaction on behalf of the principal or not; i.e, to create, modify or terminate contractual obligations between his principle, whom he represents, and some third person. Agency in law connotes the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties. The essential feature of an agent is his power of making the principal answerable to third persons, viz in enabling the principal to sue third parties directly, or render him liable to be sued directly by the third parties. In order to demonstrate that plaintiff was appointed as an authorized agent, reliance has been placed on the bank guarantee executed by plaintiff in favor of defendant No. 1. Perusal of the terms of guarantee, it is apparent that it is only for the purpose of availing credit facilities. The guarantee categorically stipulates that bank guarantee is executed on carrier (defendant No. 1) agreeing to supply Air Waybills and to grant credit facilities to Cargo Agent. Though an agency agreement need not be in writing, however, in order to infer the terms of agency between the plaintiff and defendant No. 1, the terms and conditions ought to have been pleaded by the plaintiff. From the averments made in the plaint it cannot be inferred that the plaintiff was appointed as an agent. It is rather that the defendant No. 1 agreed to carry the couriers/cargo of the plaintiff and gave him the credit facilities. Refereeing the plaintiff as cargo agent does not make the plaintiff and defendant No. 1, as an agent and a principal, in absence of relationship of principal and agent between the two. If the relationship was only that the defendant No. 1 was carrying the bulk booking of couriers/cargo booked by the plaintiff on credit, the plaintiff cannot make a grievance if the defendant No. 1 does not want to carry the couriers/cargo of plaintiff any more nor can claim that the defendant No. 1 be directed to carry on his couriers/cargo so long as the bank guarantee given by plaintiff is alive or even thereafter on account of extendable period allegedly agreed between the plaintiff and the defendant No. 1. The plaintiff cannot seek specific performance of such relationship between them. If that be so than the plaintiff shall not be entitled for an injunction that the decision to terminate the relationship between plaintiff and defendant No. 1 be stayed nor the plaintiff shall be entitled for a declaration as prayed for by him, prime facie in the facts and circumstances of this case.
15. Even if the relationship between the plaintiff and defendant No. 1 was of principal and agent which has been terminated by the principal by giving one days notice, whether such a relationship can be terminated or not and in case such a relationship has been terminated, can an agent seek specific performance of the agreement on the ground that determination was not legal and valid
16. Mr. Yadav, learned Counsel for the plaintiff relied on a judgment of Calcutta High Court , Om Prokash
Pariwal and Anr. v. Union of India Ors. where relying on Central Inland Water Transport Corporation Ltd. v.
Brojonath Ganguly, it was held that there should not be pick and choose policy to terminate agency. It was held that pursuant to the contract, the person engaged as an agent had invested huge funds of money, engaged a number of workmen and started a huge infrastructure of business, which could be in a maxi form or in mini form. Financially and in many other ways he changed the pattern of his life. He planed his dreams and desires. All of a sudden, without any reasonable cause and by a stroke of pen, if the business is stopped and the contract is rescinded by not giving an opportunity to know the reasons and/or to show cause against any reasons arrived at subjectively, there will be a mockery of Constitutional protection. The Court had held that when there is a contract between unequal persons, such contract and terms with such clauses which can determine the agreement without disclosing any reason can be termed unreasonable and can be vitiated. The relevant observations of the Apex Court in Central Inland Water Transport Corporation Ltd (supra) is extracted as under:-
Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable, are injurious to the public interest. To say that such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no court should encourage and would also not be in the public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void. While the law of contracts in England is mostly judge-made, the law of contracts in India is enacted in a statute, namely, the Indian Contract Act, 1872. In order that such a contract should be void, it must fall under one of the relevant sections of the Indian Contract Act. The only relevant provision in the Indian Contract Act which can apply is Section 23 when it states that The consideration or object of an agreement is lawful, unless ... the court regards it as ... opposed to public policy.
The Apex Court was of the view that the termination in such matter was unreasonable and the contract could not be rescinded by just terminating the same without disclosing any reason. The learned Counsel for the plaintiff also relied on Kumari Srilekha Vidyarthi Vs State of U.P to contend that distinction
between the private and public law as applicable in England has virtually gone in India and the principles of equity can be invoked even in contractual matters. This was a case of termination of contract where it was held that power of judicial review would be available and unreasonableness of a term could be considered especially in contracts where the bargaining power is unequal.
17. The learned Counsel for the plaintiff also relied on AIR 1990 NOC (87) Andhra Pradesh, Popular Shoe Mart v. K. Srinivasa Rao and anr to contend that if a person works only on commission having large discretion in effecting sale, such a person will be an agent and renunciation of agency without proper notice is void. In the facts and circumstances of this case, it was held that the defendant was an agent and not a servant and the said case is apparently distinguishable from the facts of the present case. Reliance has also been placed on AIR 1936 PC 6, Sohrabji Dhunjibhoy Medora and anr, to contend that the notice of one-day given by defendant No. 1 to plaintiff was not reasonable and the relationship between the parties could not be terminated.
18. Per contra the learned senior counsel for the defendants Shri Haksar contended that though there is no relationship of principal and of an agent, still whatsoever was the relationship, it was determinable. Even on the ground that it has not been determined in accordance with the agreement, such an agreement cannot be specifically enforced so as to continue with the agreement even after its determination. He submitted that in case the agreement is determined not in consonance with the terms agreed between the parties, it will only entitle the plaintiff to claim damages but he cannot contend that even after determination it will continue.
19. The offer of the plaintiff to the defendant No. 1was for the space allocation for courier loads 350 to 500 KG. daily to London on 9W flights as per letter dated 30th August,2005. This offer was reiterated by communication dated 27th September, 2005 and the amount of bank guarantee was enquired. The defendant No. 1 had responded by asking for a guarantee of rupees 15 lakh to release the airway bill stock. Neither the plaintiff had offered to become an agent nor the defendant No. 1 had appointed the plaintiff as an authorized agent so as to have the relationship of principal and agent.
20. The plea of the plaintiff that one day period to terminate the relationship between the plaintiff and defendant No. 1, whereby the defendant No. 1 had agreed to provide cargo space in their flights on credit, was unreasonable and illegal and arbitrary, can not be inferred. The reliance of the plaintiff on Kumar Shrilekha Vidyarthi and ors (supra) is of no help to him. This matter pertained to State action in contractual field and not of private contracts. The Apex Court categorically pointed out that there is an obvious difference in the contracts between private parties and the contracts to which the state is a party. Whereas the private parties are concerned only with their personal interests the state is expected to consider public good and public interest. The observation of the Supreme Court is as under:
22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.
Therefore the reliance of the plaintiff on the ratio of Kumari Shrilekha Vidyarthi is unfounded. Applying the principles as applicable to state in the matters of contract, the plaintiff cannot contend that the action of defendant No. 1 is unreasonable. The learned Counsel for the plaintiff is unable to show that even a private party has to pass the rigorous inquisition of fair play, lack of arbitrariness and an action of a private party has to be founded on good and sound reasons to determine the contractual relationship between the two private parties.
21. In the circumstances the prima facie inferences is that the termination of the business relationship between the plaintiff and the defendant No. 1 by intimating the plaintiff that plaintiff being not an IATA approved company, the defendant No. 1 will not carry his cargo/couriers, can not be termed unreasonable, bad in law and illegal in the present facts and circumstances of the case.
22. Assume that the termination of business relationship by the defendant No. 1 with the plaintiff is bad in law on account of one day notice or any other reason, then whether the plaintiff can insist that the business relationship or alleged agreement between the parties must continue Can the agreement of the defendant No. 1 to carry the cargo/courier of the plaintiff be directed to continue or such enforcement is barred under the provisions of Specific Relief Act.
23. To comprehend this controversy whether the relief claimed by the plaintiff are barred, Section 14 and Section 41 of the Specific Relief Act are to be considered which are as under:
14. Contract not specifically enforceable:- (1) The following contracts cannot be specifically enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940, (10 of 1940) no contract to refer present of future differences to arbitration shall be specifically enforced; but it any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of Sub-section (1), the court may enforce specific performance in the following cases:--
(a) where the suit is for the enforcement of a contract,--
(I) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once:
Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,--
(I) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or
(ii) the purchase of a share of a partner in a firm; (c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:
Provided that the following conditions are fulfillled, namely--
(I) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non- performance of the contract is not adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.
41.Injunction when refused:.-
An injunction cannot be granted--
(a) to restrain any person from prosecuting a judicial proceeding pending the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i)when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
24. Perusal of these sections reflect that a contract cannot be specifically enforced which in its nature is determinable and injunctions are not to be granted on breach of contract, nonperformance of which could not be specifically enforced and/or when a party has an equally efficacious remedy available to him. Under Section 14(1)(a) of the Specific Relief Act, the specific performance of an agreement can not be granted, breach of which can be compensated by money. The plaintiff has impugned the action of the defendant No. 1 in terminating the contract before the expiry of the period of contract. Prima facie, the inference drawn is that the agreement/business carried by the plaintiff and defendant No. 1 could be terminated and has been validly terminated. Even if the inference is that the agreement between the parties was not terminated validly and could not be terminated, then the plaintiff shall only be entitled for damages which will be adequate relief in the facts and circumstances.
25. Section 14(1)(c) of the Specific Relief Act also prohibits specific performance of an agreement which by its nature is determinable. Under Section 41 no injunction can be granted to prevent the breach of contract performance of which cannot be specifically enforced. For this proposition reliance can be placed on the decision of Apex Court in Indian Oil Corporation Ltd. v. Amritsar Gas Service in which case distributorship agreement made between Indian oil Corporation and Amritsar Gas Service as distributor of the Corporation for sale of Corporation's liquefied petroleum gas was determined under clause 27 of the agreement which provided for termination of the agreement of the Corporation forthwith on happening of the specific events while clause 28 provided that without prejudice to the other provisions of the agreement, it could be terminated by giving 30 days notice to the other party without assigning any reasons. The Supreme Court while looking into the said clauses and Section 14 and Section 41 of the of the Specific Relief Act had held:
This finding read along with the reasons given in the award clearly accepts that the distributorship could be terminated in accordance with the terms of the agreement dated April 1, 1976, which contains the aforesaid clauses 27 and 28. Having said so in the award itself, it is obvious that the arbitrator held the distributorship to be revocable in accordance with clauses 27 and 28 of the agreement. It is in this sense that the award describes the Distributorship Agreement as one for an indefinite period, that is, till terminated in accordance with clauses 27 and 28. The finding in the award being that the Distributorship Agreement was revocable and the same being admittedly for rendering personal service, the relevant provisions of the Specific Relief Act were automatically attracted. Sub-section (1) of Section 14 of the Specific Relief Act specifies the contracts which cannot be specifically enforced, one of which is a contract which is in its nature determinable. In the present case, it is not necessary to refer to the other clauses of Sub-section (1) of Section 14, which also may be attracted in the present case since clause (c) clearly applies on the finding read with reasons given in the award itself that the contract by its nature is determinable. This being so granting the relief of restoration of the distributorship even on the finding that the breach was committed by the appellant-Corporation is contrary to the mandate in Section 14(1) of the Specific Relief Act and there is an error of law apparent on the face of the award which is stated to be made according to the law governing such cases. The grant of this relief in the award cannot, therefore, be sustained.
26. Thus it was held that if agreement was determinable, specific performance could not be granted. Similar question came up for consideration in the case of Indian Oil Corporation Ltd. Vs Shriram Gas Service referring to the term of the agreement
it was held that the agreement was determinable and therefore the injunction for performance of such an agreement could not be granted. The Court had held:
13. In the case at hand also, the notice of termination specifies the ground for termination within the meaning of Clause 27 of the Agreement between the parties. Assuming that the reasons did not exist the only relief to which the respondent distributor would have been entitled to was compensation for the loss of earnings for the notice period of 30 days, as the agreement was in any case terminable by either side subject to 30 days notice under Clause 28. In any case, the relief of restoration of distributorship could not have been awarded by the Arbitrator
27. The plaintiff is not entitled for any relief in respect of an agreement/business dealing which is determinable and which has been determined. Even if the determination is not in accordance with the terms and conditions, it will only entitle a party for damages and not specific performance of the agreement. What is to be seen in the facts and circumstances is whether the contract was determinable or not. The word 'determinable' used in clause (c) to Sub-Section (1) of Section 14 means a contract which can be put to an end. The said provision contemplates that a contract cannot be specifically enforced if by its nature it will be determinable. Thus all revocable deeds and voidable contracts will fall within determinable contracts and the principle on which a specific performance of an agreement would not be granted is that the Court shall not go through the ideal ceremony of ordering the execution of deed or instrument which is revocable and ultimately can not be enforced as specific performance cannot be granted of a determinable contract. What emerges unequivocally is that it is not only voidable contracts but where the contract provides that it is terminable on a particular event, even then it must be taken in terms of Section 14(1)(c) of the Specific Relief Act that the contract would be determinable and in such an event Section 14(1)(c) read with Section 41(e) of the Specific Relief Act, an injunction as such will not be granted. Relying on Staffordshire Area Health Authority Vs South Staffordshire Waterworks Co  3 All E R 769 it was contended that even those agreements which contains no provision for determination can be terminated. Lord Denning MR had held as under:
We were taken through six cases which considered contracts which contained no provision for determination. On going through them, they seem to show that, when a person agrees to supply goods or services continuously over an unlimited period of time in return for a fixed monthly or yearly payment, the Courts shrink from holding it to be an agreement in perpetuity. The reason is because it is so unequal. The Cost of supply of goods and services goes up with inflation through the rooftops: and the fixed payment goes down to the bottom of the well so that it is worth little or nothing. Rather than tolerate such inequalities, the Courts will construe the contract so as to hold that it is determinable by reasonable notice. They do this by reference to the modern rule of construction. They say that in the circumstances as they have developed, which the parties never had in mind, the contract ceases to bind the parties forever. It can be determined on reasonable notice
28. The plaintiff does not say that the agreement is determinable or not except that the bank guarantee furnished by the plaintiff is valid till October, 2006. The bank guarantee is an independent contract between the defendant No. 1 and the bank. It does not show conclusively the terms and conditions between the plaintiff and the defendants. The plaintiff has sought restrain against bank guarantee also which cannot be granted in the facts and circumstances. Even if the bank guarantee is valid till October, 2006 it cannot be inferred that the business relationship between the plaintiff and defendant No. 1 could not be terminated before October, 2006. The defendant No. 1 cannot be directed to continue doing business, taking plaintiff's couriers/cargo on his flights to London, despite a decision taken by him not to carry cargos/couriers of non approved IATA agents. If the plaintiff has sustained or will suffer damages on account of termination of business dealings, this cannot be a ground to direct the defendant No. 1 to continue doing business with the plaintiff. Considering it from any angle, the inevitable inference is that the plaintiff cannot force defendant No. 1 to continue taking plaintiff's cargos/couriers on his flights in the present facts and circumstances of the case. In totality of circumstances the plaintiff has failed to make out a strong prima facie case in his favor. The inconvenience caused to the defendants shall be much more in case the injunction as prayed by the plaintiff is granted in his favor and therefore, the balance of convenience is in favor of defendants. If that be so then, a fortiori, the plaintiff is not entitled for any interim injunction as prayed for by him and an interim order dated 31st March,2006 already granted is liable for vacation.
29. For the foregoing reasons the order dated 31st March,2006 staying the decision of the defendants to terminate the agreement between the plaintiff and the defendants is vacated and the application of the plaintiff for interim injunction under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure being IA No. 3848 of 2006 is dismissed.
30. Needless to mention, the views expressed above are tentative and prima facie conclusions which will not be expression of any final opinion on the final merits of the case.